Part III - Contiguous Zone, EEZ, and Continental Shelf

LAW OF SEA
Dr.
SOVEREIGNTY OF COASTAL STATES IN BALANCE

WITH FREEDOM OF NAVIGATION
PART III: CONTIGUOUS ZONE, EXCLUSIVE ECONOMIC
ZONE, AND CONTINENTAL SHELF
Dr. Sagar Kumar Jaiswal

Assistant Professor
Department of Law, GGV, Bilaspur (C.G.)
Copyright Protection: Dr. Sagar Kumar Jaiswal (14.11.2023)
Assistant Professor, Guru Ghasidas Vishwavidyalaya, Bilaspur, Chhattisgarh, India
CHAPTER 6
SOVEREIGNTY OF COASTAL STATES IN BALANCE WITH

FREEDOM OF NAVIGATION:
PART III: CONTIGUOUS ZONE, EEZ, AND CONTINENTAL
SHELF©
Authored by: Dr. Sagar Kumar Jaiswal,

QUESTIONS FOR EXERCISE

1. Related to Contiguous Zone
1. What is the contiguous zone, and how does it differ from the territorial sea?
2. When was the concept of the contiguous zone first discussed in international law, and
what led to its development?
3. What is the significance of Article 24 of the Geneva Convention on Territorial Sea and
the Contiguous Zone, 1958, in defining the concept of the contiguous zone?
4. Explain the difference between the Geneva Convention of 1958 and the UN Convention
of 1982 regarding the contiguous zone, specifically in terms of the limit and wording.
5. What purposes do coastal states have the right to exercise preventive or protective
control for in the contiguous zone, according to both the Geneva Convention of 1958
and the UN Convention of 1982?
6. Why does the term "security" not appear among the purposes of the contiguous zone,
and what was the rationale provided by the International Law Commission (ILC) in this
regard before the First UN Conference on the Law of the Sea?
7. Why did India insist on retaining the concept of the contiguous zone, and what limit did
it adopt for its contiguous zone?
8. In the incident involving the MV Enrica Lexie, what were the key facts, and how did the
Indian legal system handle the case?
9. What arguments did the Italian marines present in their defense, citing international law,
and how did the Supreme Court of India respond?
10. How did the International Tribunal for the Law of the Sea (ITLOS) and the Permanent
Court of Arbitration (PCA) rule on the jurisdiction and actions of India and Italy in the
Enrica Lexie case?
11. What were the main reasons given by the Permanent Court of Arbitration for its award
in the Enrica Lexie case, and what implications did it have for India and Italy?
Long answer question:
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1. Examine the legal implications and jurisdictional challenges arising from the MV Enrica
Lexie incident, involving the killing of Indian fishermen by Italian marines. Delve into
the arguments presented by both India and Italy, considering international maritime law,
UNCLOS provisions, and the decisions of the International Tribunal for the Law of the
Sea (ITLOS) and the Permanent Court of Arbitration (PCA). Assess the broader
consequences and lessons for the application of international law in cases involving
maritime incidents and jurisdictional disputes.
2. Related to EEZ
1. What were the historical and geopolitical considerations that led to the development and
adoption of the Exclusive Economic Zone (EEZ) concept, and how did the merging of
Kenya's proposal for a 200-mile EEZ and the 'patrimonial sea' concept contribute to the
establishment of the EEZ's legal framework during UNCLOS III in 1975?
2. Discuss the rights and duties of Coastal States in its EEZ.
3. Discuss rights and duties of other States in EEZ.
4. How does the principle of equity, as outlined in Article 59 of the LOSC, guide the
resolution of conflicts over residual rights in the EEZ, especially in cases where the
convention does not explicitly attribute rights or jurisdiction to the coastal State or other
States? Provide examples or cases to illustrate the application of this principle in practice.
5. How do the provisions of Article 60 of the LOSC strike a balance between the exclusive
rights and jurisdiction of the coastal State over artificial islands, installations, and
structures in the EEZ and the obligations to ensure safety of navigation and respect for
recognized sea lanes essential to international navigation?
6. How does the decision in the Aban Loyd Chiles Offshore Ltd. case contribute to the
understanding and interpretation of the UNCLOS provisions on customs duties in the
Exclusive Economic Zone, particularly in determining the territorial scope and
application of customs duties in areas deemed to be part of the coastal State's territory?
How might this ruling impact the rights and obligations of entities engaged in offshore
activities within the EEZ of a coastal State?
7. How do the provisions in Articles 61 and 62 of UNCLOS strike a balance between the
rights of the coastal State to conserve and manage living resources in its EEZ and the
responsibilities to promote optimum utilization while considering the interests of other
States, especially developing and geographically disadvantaged ones?
8. How do Articles 69, 70, and 71 of UNCLOS, which address the rights of landlocked and
geographically disadvantaged states in the exploitation of living resources, strike a
balance between the interests of these states and those of coastal states?
9. What framework are established through Article 73 OF LOSC for the purpose of
enforcement of law and regulation by Coastal State in its EEZ?
3. Related to Continental Shelf
1. Discuss the evolution of Legal Concept of Continental Shelf. In what way Article 76(1)
of LOSC define the continental shelf. What is included in continental margin under the
legal concept?
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2. In what ways LOSC establish criterions to determine the outer limit of continental shelf?
Illustrate your answer through picture diagrams.
3. What is the utility of The Commission on the Limits of the Continental Shelf ? Answer
while referring to specific provision of LOSC.
4. What are the key provisions and principles related to revenue sharing in the designated
zone beyond 200 nautical miles, as outlined in the United Nations Convention on the
Law of the Sea (LOS), and how do these provisions aim to balance the interests of
coastal states and promote equitable sharing among Convention parties?
5. Discuss the nature of rights of coastal State over its Continental Shelf.
6. Can you elaborate on the key provisions outlined in the United Nations Convention on
the Law of the Sea (LOSC) regarding the coastal State's jurisdiction over various
activities on the continental shelf, including the construction and regulation of artificial
islands, the requirements for marine scientific research, the authority over dumping, and
the exclusive rights related to drilling, highlighting the legal frameworks and limitations
set forth in the LOSC?
7. Can you analyze the key elements and principles outlined in the judgment of the
International Court of Justice (ICJ) in the North Sea Continental Shelf case, particularly
regarding the delimitation of the continental shelf between states with opposite or
adjacent coasts, the applicability of the equidistance method, and the factors considered
by the court in reaching its decision?
1. What is the key distinction between the geographical definition of a strait and its legal sense?
2. Can you explain the background and significance of the Corfu Channel Case in the context
of international straits?
3. In the Corfu Channel Case, what were the main arguments presented by the United
Kingdom and Albania regarding the legality of the Royal Navy's passage through the Corfu
Channel?
4. What were the two significant principles established by the Corfu Channel Case with regard
to the passage of warships through international straits?
5. How did the Geneva Convention on Territorial Sea and Contiguous Zone, 1958, reflect the
principles established in the Corfu Channel Case regarding international straits?
6. Under the United Nations Convention on the Law of the Sea (UNCLOS), what is the
definition of an international strait, and how does it relate to innocent passage and transit
passage?
7. Can you explain the different categories of international straits as outlined in UNCLOS, and
provide examples of each category?
8. What are the rights and obligations of coastal states bordering international straits, according
to Articles 41, 42, 43, and 44 of UNCLOS?
9. How does Article 45 of UNCLOS define and govern the concept of innocent passage
through international straits?
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10. What are the key differences between innocent passage and transit passage, and how do
these differences impact the rights and obligations of states and vessels passing through
international straits?
11. What is the fundamental difference between transit passage and innocent passage, and how
do they apply in international maritime law?
12. How does UNCLOS define the term "international strait," and why is it significant for the
exercise of the right of transit passage?
13. Can you explain the conditions under which the right of transit passage may not apply in the
case of a strait formed by an island and its mainland?
14. What activities are considered permissible during the exercise of the right of transit passage,
and under what circumstances can ships or aircraft deviate from their transit path?
15. What are the "other applicable provisions of this convention" mentioned in Article 38(3),
and how might they impact the exercise of the right of transit passage?
16. What are the duties of ships and aircraft during transit passage, and how do they relate to
safety at sea, pollution prevention, and other international regulations?
17. How do coastal states exercise their rights and responsibilities in designating sea lanes and
traffic separation schemes for international straits, and what conditions must they meet?
18. What are the key conditions for coastal states to adopt laws and regulations related to the
safety of navigation, pollution control, fishing, and customs in international straits?
19. How does Article 43 of UNCLOS promote cooperation between user states and strait states
regarding safety, navigation aids, and pollution control in international straits?
20. Can you explain the concept of "non-suspendable innocent passage" as outlined in Article
45, and why is it relevant in the context of international straits?
21. What are the key differences between innocent passage and transit passage, and how do
these differences impact the rights and obligations of ships and coastal states?
22. How does UNCLOS address the passage of nuclear-powered and hazardous cargo ships
under transit passage rules, if at all?
23. Why is cooperation between user states and strait states in establishing navigational aids and
controlling pollution emphasized in transit passage but not in innocent passage?
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CONTIGUOUS ZONE
The contiguous zone is a narrow belt of water lying seaward of the Territorial Sea. In fact, it is
the extension of the Coastal State’s jurisdiction that extends beyond the territorial Sea. The
contiguous zone has to be declared by the Coastal State in order to exercise control and
enforcement according to the Convention.
The Establishment of a contiguous zone is a fairly ancient practice. Its first manifestations
appeared even before the actual concept of the territorial sea was defined and accepted.
However, its acceptance as a concept in the International Law of the Sea is relatively new. The
concept of contiguous zone developed as a result of the inability of the coastal State to ensure
effective protection of all its interest due to the limited breadth of the territorial sea.
The issue of contiguous zone was discussed at the Hague Codification Conference in 1930.
Though there was diversity of opinion regarding the extent of contiguous zone, the concept as
such was accepted as lawful by a big majority of States who represented there. Thereafter, the
Concept of contiguous zone was fully recognized in the First UN Conference on the Law oof
Sea at Geneva. Article 24 of the Geneva Convention on Territorial Sea and the Contiguous
Zone, 1958, contains the concept of contiguous zone. It is unequivocally stated in this article
that in a zone of the high seas contiguous to its territorial sea, the Coastal State may exercise the
control necessary to prevent infringement of its customs, fiscal, immigration or sanitary
regulation withing its territorial sea; and punish infringement of the above regulations committed
within its territory or territorial sea. It is further provided that contiguous zone may not extend
beyond 12 nautical miles from the baseline from which the breadth of the territorial sea is
measured. An analogous provides of the UN Convention on the Law of Sea, 1982 is Article 33,
which provided as follows:
1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State
may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea;
(b) punish infringement of the above laws and regulations committed within its territory or
territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which
the breadth of the territorial sea is measured.
The difference between Geneva Convention of 1958 and UN Convention of 1982 is that the
latter convention deletes the words “of the high seas” and fixed the limit of contiguous Zone at
24 nautical miles instead of twelve miles prescribed by the former convention.
Both Conventions make it clear that in the contiguous Zone, coastal States have right to exercise
preventive or protective control for certain purposes. The juridical nature of this zone is quite
distinct from that of territorial sea. Unlike territorial sea, coastal States do not exercise
sovereignty in the contiguous zone. Furthermore, it is worth noticing that security of the coastal
Stats does not figure as one of the purposes of the contiguous zone. As regards the non-
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inclusion of the term “security” among the purposes of the Contiguous Zone, ILC (before First
UN Conference on the Law of Sea) stated:
The commission did not recognize, special security rights in the contiguous zone. It considers
that the extreme vagueness of the term ‘security’ would open the way for abuses and that
granting of such rights was not necessary. The enforcement of customs and sanitary regulations
will be sufficient in most cases to safeguard the security of the State. Insofar as measure of self
defence against an imminent and direct threat to the security of the State are concerned, the
commission refers to the general principles of the international law and the Charter of the UN.
In addition to the power granted to the Coastal State under article 33(1), it has a right under
article 111 UNCLOS, to the hot pursuit of a Foreign Ship, if it has a good reason to believe that,
such ship has violated the laws and regulations of the Coastal State. The mentioned pursuit must
be commenced when the Foreign Ship or one of its boats is withing the internal waters, the
archipelagic waters, the territorial sea or the contiguous zone of the pursing State. The pursuit
may only be continued outside the territorial sea or the contiguous zone, if it has not been
interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or
the contiguous zone, receives the order to stop, the ship giving the order should likewise be
within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone,
as defined in article 33, the pursuit may only be undertaken if there has been a violation of the
rights for the protection of which the zone was established. Based on this, the hot pursuit has to
start from the territorial sea, and it should be uninterrupted in the area from the territorial sea
into the contiguous zone. This right comes to an end, once a ship pursued enters the territorial
sea of another state.
Indian Position
On 3rd of December 1956, President of India issued proclamation wherein India adopted a 12
nautical mile contiguous zone for the purposes of customs and sanitary regulations. At the
Caracas Session of UNCLOS III in 1974, the leader of the Indian delegation, while making a
policy statement declared that India was in favour of a contiguous sone of 18 miles outside the
territorial sea, i.e., an area of thirty miles in total under the control of coastal State for preventing
or punishing the infringement of customs, fiscal, immigration and sanitary regulations. When the
matter came up for detailed discussion in the Second Committee of UNCLOS III, many
delegations expressed the view that the acceptance of a 12 nautical miles territorial sea and 200
miles EEZ would render the concept of the contiguous zone superfluous (=redundant/extra).
But India insisted that there was enough justification to retain the concept of special jurisdiction
on coastal States to prevent infringement of customs, fiscal, immigration, and sanitary
regulations. Since this concept was different from, but not incompatible with, the concepts of
territorial sea and EEZ, it should be retained. India was supported by many delegations. Though
Jagota of India declared 30 miles (12 + 18) of contiguous zone as desirable, a proposal was
introduced by India along with some other States at Caracas without mentioning a limit for it.
The blank space regarding the limit of the contiguous zone indicated that though some other
States shared India’s belief in the retention of the concept, they could not agree upon the limit.
There was valid reason for India’s insistence on the retention of contiguous Zone. Smuggling
between India and the Middle East has increased tremendously during 1960s. The Indian
Government fund it helpless to check such unlawful activities beyond 12 nautical miles. Even
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when it declared a territorial sea of 12 miles in 1967, it was not enough to stop smuggling. So, it
wanted an area of 30 miles along its coast to effectively curb smuggling.
Finally, in 1976, India passed Maritime Zones Act. Section 5 of the Act provides as follows:
Section 5. Contiguous zone of India.
(1) The contiguous zone of India (hereinafter referred to as the contiguous zone) is an area
beyond and adjacent to the territorial waters and the limit of the contiguous zone is the line
every point of which is at a distance of twenty-four nautical miles from the nearest point of the
baseline referred to in sub-section (2) of section 3.
(2) Notwithstanding anything contained in sub-section (1), the Central Government may,
whenever it considers necessary so to do having regard to International Law and State practice,
alter, by notification in the Official Gazette, the limit of the contiguous zone.
(3) No notification shall be issued under sub-section (2) unless resolutions approving the issue
of such notification are passed by both Houses of Parliament.
(4) The Central Government may exercise such powers and take such measures in or in relation
to the contiguous zone as it may consider necessary with respect to,
(a) the security of India, and
(b) immigration, sanitation, customs and other fiscal matters.
(5) The Central Government may, by notification in the Official Gazette,
(a) extend with such restrictions and modifications as it thinks fit, any enactment, relating to any
matter referred to in clause (a) or clause (b) of sub-section (4), for the time being in force in
India or any part thereof, to the contiguous zone, and
(b) make such provisions as it may consider necessary in such notification for facilitating the
enforcement of such enactment,
and any enactment so extended shall have effect as if the contiguous zone is a part of the
territory of India.
There are two noticeable points, namely: First, India has accepted 24 nautical miles as limit of
the contiguous zone; and second, the Act mentions one more field in which the government
claims control in the contiguous zone, i.e., Security of India. The inclusion of “security”
amongst the purposes of the contiguous zone widens the authority of the Indian government
over foreign ships in the outer twelve miles of contiguous zone.
Referring to the provision of the Maritime zones Act, the supreme Court in Republic of Italy versus
UOI, which concerned the killing of two Indian fishermen who were mistook by the Italian
Submarine as a private vessel, discussed India’s entitlement to claim sovereignty.
Facts of the Case
The incident took place on 15th February 2012, when MV Enrica Lexie, an Italian flagged
shipping vessel was on its way to Djibouti. It came across St. Antony, an Indian fishing vessel.
Enrica Lexie was sailing with an Italian Military Protection Department on board. His duty was
to protect the vessel from piracy attacks. The ship was sailing close to the Indian border in the
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Indian Contagious Zone, when it reported a piracy attack through the Mercury Chat. The
marines mistook St. Antony to be a pirate vessel. And killed two Indian fishermen at a distance
of about 20.5 nautical miles from the sea coast.
The Italian vessel had proceeded about 38 nautical miles on the high sea towards Djibouti, when
it was contacted by the Maritime Rescue Co-ordination Centre, Mumbai. Mumbai asked it to
return to Kochi port, to assist with the enquiry into the incident. Responding to the message,
Enrica Lexie changed its course and returned to Kochi port, on 16th Feb, 2012. Upon docking in
Cochin, the Master of the vessel was informed about the First Information Report being filed
with respect to the firing incident leading to the death of two Indian Fishermen. On 19th
February, the two marines, Massimiliano Latorre and Salvatore Girone, were arrested and
charged for murder under the Indian Penal Code.
Issues Before the Court?
Whether the arrested fishermen were correctly charged for murder under the Indian Penal Code?
The Italian Marines claimed sovereign functional immunity. They contended before the court
that since they were the naval guards on an Italian ship, they were functioning under the
instructions of their country, Italy. But this argument was rejected by the Supreme Court in the
absence of any forced agreement between India and Italy.
Counsel for Italy then relied on Article 97 of UNCLOS which provides for Penal Jurisdiction in
matters of collision or any other incident of navigation. Since India was a signatory of the
UNCLOS, it was bound by its provisions and both UNCLOS and Maritimes Zones Act, 1976 to
recognise the primacy of Flag State Jurisdiction. It was also highlighted that Maritimes Zones
Act, 1976 provided use of territorial waters by foreign ships.
They had a right to innocent passage. The incident occurred at a place which was 20.5 nautical
miles from the coast of India. It was clearly outside territorial waters and therefore, the incident
did not occur within the jurisdiction of one of the federal units of the Union of India.
The Court relied heavily over the principle laid down in the case of S.S. Lotus (France v.
Turkey)7 and ruled that India had jurisdiction.
In the said case, the question relating to the extent of the criminal jurisdiction of a State was
brought to the Permanent Court of International Justice in 1927. The said case related to a
collision between the French Steamship Lotus and the Turkish Steamship Boz-Kourt, which
resulted in the sinking of the latter and the death of eight Turkish subjects.
Once the Lotus arrived at Constantinople, the Turkish Government commenced criminal
proceedings against the Captain of the Turkish vessel and the French Officer of the Watch on
board the Lotus. The French Government questioned the judgment on the ground that Turkey
had no jurisdiction over an act committed in the open seas by a foreigner, on board a foreign
vessel, whose flag gave it exclusive jurisdiction in the matter. On being referred to the Permanent
Court of International Justice, it was decided that Turkey had not acted in a manner which was
contrary to International Law. Since the act committed on board the Lotus had effect on the
Boz-Kourt flying the Turkish flag.
The Supreme Court also ruled that since the incident took place within the Contiguous Zone,
over which, under the provisions of the Maritime Zones Act, 1976, and UNCLOS 1982, India
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was entitled to exercise rights of sovereignty. The Court admitted that State of Kerala had
no jurisdiction to try this case. But Union of India could try this case but only through a special
court. A special court was set up to try this case in accordance with Maritimes Zones Act, 1976,
Code of Criminal Procedure, 1973, Indian Penal Code, 1860 and UNCLOS, 1982. It was to be
tried unless there was no conflict between the provisions of domestic law and UNCLOS. It also
concluded that the shooting incident was neither a matter of collision nor any other incident of
navigation as mentioned under article 97 of the UNCLOS.
Observance
Undoubtly, the incident took place within the contiguous zone over which, both under the
provisions of the Maritime Zones Act 1976 and UNCLOS, 1982, India is entitled toe exercise
right of sovereignty. However, as decided by this court in the Aban Loyd Chiles offshore Ltd.
versus UOI (2008) sub-section 94) of the section 7 only provides for the UOI to have sovereign
rights limited to exploration, exploration, conservation and management of the natural
resources, both limiting and non-living, as well as for producing energy from tides, winds and
currents, which cannot be equated with rights of sovereignty over the said areas in the exclusive
economic zone. It also provides for the UOI to exercise other ancillary rights which only clothes
the UOI with sovereign rights and not rights of sovereignty in the EEZ. The said position is
reinforced under section 6 and 7 of the maritime Zones Act, 1976, which also provides that
India’s sovereignty extends over its territorial water while, the position is different in respect of
the exclusive economic zone. I am unable to accepts Mr. Banerji’s submission to the contrary to
the effect that Article 59 of the Convention permits the States to assert rights or jurisdiction
beyond those specifically provided int the convention.
The court further observed that:
…. While India is entitled both under its domestic law and the public international law to
exercise rights of sovereignty up to 24 nautical miles from baseline on the basis of which the
width of the territorial waters is measured, it can exercise only sovereign rights withing the
exclusive economic zone for certain purposes. The incident of firing from the Italian Vesel on
the Indian shipping vessel having occurred within the contiguous zone, the UOI is entitled to
prosecute the two Italian marines under the criminal justice system prevalent int the county.
However, the same is subject to the provisions of Article 100 of UNCLOS, 1982…”
Declaration of principles of internal law concerning Family Relations and Cooperation between
States in accordance with the Charter of the United Nations has to be conducted only at the
level fo the Federal or Central government and cannot be subject matter of a preceding initiated
by a Provincial State government.
Main Reasons for the judgement: The reasons given were as follows:
• It was established by the arguments in the proceedings that the incident occurred 20.5
nautical miles from the baseline of India which is not part of the territorial waters of the
coast of Kerala. This implies that the Police force of Kerala and the Courts of Kerala
should not have any jurisdiction over the case.
While the Respondents argued that since the incident occurred within the contiguous zone of
India, there could be an extension of the jurisdiction of Kerala Police and courts by Section
188A of IPC and Code of Criminal Procedure, 1973 till the EEZ and CZ.
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This was countered by stating that the provisions in the IPC and CrPC would not give Kerala the
jurisdiction to try the offence but would give this jurisdiction to the Union of India.
Likewise, the State of Kerala did not have the right to investigation either as the same right
would be given to the Union of India itself.
It was also stated that the two people who were accused were marines, part of the Royal Italian
Navy and hence a dispute regarding their activities is a concern for the Republic of Italy. As it
was recorded, Italy had started investigations and proceedings as well regarding their act which
could have given them a punishment of 21 years of life imprisonment. This means that the issue
is between two Nations and in such a situation, Kerala just happens to be a unit of India and
hence does not have any rightful jurisdiction.
• It was further argued by the Respondents that Section 2 of the IPC provided that the
IPC would apply all offenders within the State of India. This would imply that since the
offence took place within the territory of India, the provisions of India would apply
instead of the provisions of UNCLOS.
This was countered by the petitioners stating that the Indian Penal Code was enacted in 1860,
which was much before the establishment of the UNCLOS Act. India had also become a
signatory of UNCLOS and so must adhere to its provisions, and all of its actions regarding the
laws of the seas must be compatible with the UNCLOS.
It was added that before the establishment of the UNCLOS Convention, the laws for the seas
were governed by different Acts that included the Maritime Zones Act, 1976. The laws in these
Acts are also in harmony with the provision of UNCLOS.
• It was finally argued that by the reading of Article 97 and Article 100 of UNCLOS it
could be established that the State of Kerala did not have the jurisdiction because the
above provision of UNCLOS provided that there should be no interference by the
Coastal state in an incident which involved foreign navigation incidents such as these,
even with regard to the investigation. Only the flag country (the country whose flag was
displayed on the ship) had the right to investigate and conduct proceedings.
Article 100 also provides for cooperation between the signatories to tackle piracy in the area.
This article would apply to the given facts and Union of India could proceed with the
investigation of the case.
Hence, the Union of India was directed to establish a Special Court to try the case and conduct
the proceedings in accordance with the Indian provision but more importantly the UNCLOS
1982.
Post this judgement, India also filed charges under the Suppression of Unlawful Charges (SUA)
against the Italian marines in January 2014. Sergeant Latorre was also sent back to Italy because
of certain health reasons. The Supreme Court then asked both the parties to sort out this issue
of the SUA charges. There were deliberations regarding the same for a long period of time and
Italy was also strongly protesting against the same as this would imply that there was an act of
terrorism by Italy whereas their intention was only to protect their ship from pirates. The
Ministry of External Affairs along with the Ministry of Law and Justice in India also stated that
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the SUA charges would not be applicable and hence these charges were dropped by India against
the Marines.
ITLOS Judgement
Italy, unhappy with the Indian proceedings and with an attempt to cease the Indian jurisdiction,
moved to the International Tribunal for the Law of the Sea (ITLOS). They prayed to the
tribunal to direct that:
1. India should cease their jurisdiction over the Enrica Lexie incident and must refrain from
taking any action against the two marines involved in the incident.
2. India must not make any restrictions toward the freedom and movement of the marines
and must allow Sergeant Girone to go back to Italy and let Sergeant Latorre to stay in
India during the time of the proceedings.
India pleaded the tribunal to reject the requests as well but the final decision of the ITLOS was
as follows-
Both Italy and India must suspend all their existing proceedings and must avoid starting any new
ones as well, which would affect any decision that the arbitral tribunal may provide.
Both the States must also give an Initial Report of the events.
Permanent Court of Arbitration, Hague, Netherlands
This matter was finally heard in the PCA, Hague, Netherlands. The proceedings were as follows:
Italy’s pleadings
• Italy pleaded that the tribunal must establish its jurisdiction over this case completely and
must dismiss India’s claims that objected to such jurisdiction.
• It further argued that while conducting its proceedings the use of Act that governed the
laws of the sea like Territorial waters Act, EEZ, other Maritime Zone Acts is invalid and
is in violation of the following articles of UNCLOS-
Article 33- Exceeded its right over the Contiguous zone as the Coastal State by imposing
penalties and detention of the Italian marines.
Article 56- India disregarded the rights of Italy concerning the Exclusive Economic Zone and
exceeded its jurisdiction to the area beyond that by conducting the proceedings for the Italian
marines.
Article 58- All states have the right to international lawful use of the Exclusive Economic Zone
concerning shipping and such a right has been infringed by the actions of India.
Article 87- All states must be allowed the free movement of their ships in the high seas and the
provisions of the UNCLOS conventions must be followed with respect to such movement.
Article 89- India as by its proceedings and investigation invoked its sovereignty and that is a
breach of the UNCLOS provisions.
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• Article 92 of UNCLOS was violated as the right to jurisdiction of any events related to
the Enrica Lexie should lie with Italy, being the flag state.
• India did not cooperate with the Italian marine’s action to tackle piracy and also abused
its rights and jurisdiction by asking the Enrica Lexie to change its path, thereby violating
Article 100 of UNCLOS.
• There has also been a violation of Article 97 by conducting proceedings regarding the
offences of the Italian marines by investigating the events and also by the detention of
the ship.
• Lastly, by arresting and detaining both the Sergeants, India has committed a breach of
the provisions of UNCLOS by extending its sovereignty over another country.
• It was also requested by the Republic of Italy that the tribunal must declare that:
1. India must stop all of its proceedings and any other legal actions that tend to violate the
provisions of the UNCLOS.
2. India must make changes to bring back the situation normal with respect to the two
Sergeants.
3. India must pay compensation to both the sergeants for the suffering that was caused to
them by way of arrest, detention and court proceedings.
India’s Pleadings
India requested the tribunal to declare that:
• The tribunal has no jurisdiction over the present case or any of the claims made by Italy.
• Dismiss all the submissions made by Italy.
• And that India’s counter-arguments are valid.
• Further, it was requested by India to judge and declare that by firing the fishermen Italy
had violated the following provision of UNCLOS:
Article 56- India’s sovereign rights were violated by Italy’s actions in the seas exceeding its rights
by firing.
Article 58- Disregarded India’s rights as the coastal state in the Exclusive Economic Zone.
Article 87, 88 and 90-Violation of India’s freedom of navigation and right to use its Exclusive
Economic Zone.
1. Lastly, India requested the tribunal to order Italy to compensate for all the violations of
the provisions in the UNCLOS.
Award by the PCA
• The tribunal said that it had the jurisdiction of this matter considering that both India
and Italy were signatories of the UNCLOS 1982.
• The tribunal found that Italy had acted in breach of the provision of UNCLOS by
infringing India’s right to freedom of navigation in the seas by firing and restricting the
movement of St. Antony.
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• Italy was liable to pay compensation for the loss of life of the two fishermen, for
endangering the fishermen on the boat and also for damaging the fishing vessel.
• India was not in violation of Article 87, Article 92 or Article 100 of the UNCLOS 1982.
• India had not abused its powers given by the UNCLOS.
• The tribunal also declared that India must cease all its proceedings and does not have the
jurisdiction over the matters of this case.
• The Italian marines must be given immunity for the acts that they have committed.
• The tribunal found that Italy was not in violation of Article 56, Article 58 and Article
88(Refer above).
Application to Supreme Court
India moved to the Supreme Court to file for an application to end all proceedings that were
initiated regarding the Enrica Lexie case, with compliance to the decision of the Permanent
Court of Arbitration
All matters regarding the merits of the case and punishment of the marines would now be
handled by the Italian Courts.
Conclusion
We see how India has finally lost its jurisdiction of this 8-year-old case but has not completely
lost on the merits of the case as Italy is still liable to pay compensation to India for the damage
caused by the firing of the two fishermen. Although the decision regarding the compensation is
final, there is still a judgement left regarding the penalty for the Italian marines by their local
jurisdiction.
As a concluding remark, it may be mentioned that India’s strong support of the concept of contiguous zone is
responsible for the inclusion of the concept contiguous zone in the UN convention on the Law of Sea, 1982. If
India had not strongly supported the concept of contiguous zone, perhaps the concept would not have found tis
place in the convention.
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EXCLUSIVE ECONOMIC ZONE (EEZ)
The Exclusive Economic Zone (EEZ) is a maritime area adjacent to and beyond the territorial
sea, with a limit not exceeding 200 nautical miles from the territorial sea's baseline. This 200-mile
EEZ comprises approximately 35-36 percent of the world's oceans. Notably, the leading
beneficiaries of the EEZ include developed nations such as the USA, France, Indonesia, New
Zealand, Australia, Russia, and Japan. It is worth noting that many states that had previously
claimed an Exclusive Fishing Zone (EFZ) have transitioned to the EEZ, while some still
maintain EFZs.
Unlike other zones whose existence derived from earlier international law, the EEZ is a creation
of the LOSC. The origin of the EEZ concept can be traced back to the practices of Latin
American states after World War II. In 1947, Chile, Peru, and Ecuador asserted a 200-nautical
mile boundary to exercise full sovereignty, with a scientific rationale behind it. This specific
measurement allowed Andean states to access the Peruvian and Humboldt Currents, which were
rich in marine life. These states believed in the interconnectedness of marine resources and
coastal populations, viewing the 200-mile claim as a means to address a geographical
disadvantage, notably the absence of a continental shelf.
Subsequently, the 200-nautical mile claim gained traction among many developing coastal states.
However, as UNCLOS III's Caracas Session approached, it became evident that major maritime
powers would not readily accept such an expansive territorial sea, which could impede their
economic and military interests. As a compromise, Kenya proposed the concept of the EEZ
during the Asian-African Legal Consultative Committee meeting in Colombo in 1971. This
proposal garnered overwhelming support from developing countries. India was Chief supporter
of this proposal.
In August 1972, Kenya formally submitted its proposal for a 200-mile EEZ to the UN Seabed
Committee. This proposal aimed to grant coastal states jurisdiction over the zone's natural
resources while ensuring freedom of navigation. Additionally, a related concept, the 'patrimonial
sea,' was introduced in the Declaration of Santo Domingo during a conference of Caribbean
countries on June 7th, 1972. Colombia, Mexico, and Venezuela submitted proposals for the
'patrimonial sea' to the Seabed Committee. This declaration asserted the sovereign rights of
coastal states over both renewable and non-renewable natural resources within the patrimonial
sea, an area adjacent to the territorial sea. The difference between both proposal lies in its focus
and objectives. While Kenya’s proposal provided a specific framework for coastal state
jurisdiction over a 200-mile zone, no limit was specified in Patrimonial Sea Proposal. The
concept of the 'patrimonial sea,' as introduced in the Declaration of Santo Domingo in June
1972, primarily focused on asserting the sovereign rights of coastal states over the natural
resources within this specific area adjacent to their territorial sea. It did not inherently include the
concept of freedom of navigation.
Ultimately, these two concepts merged at UNCLOS III, leading to the establishment of the
EEZ's legal framework. By 1975, the foundational principles governing the EEZ were
incorporated into Part V of the United Nations Convention on the Law of the Sea (LOSC).
Limit of the EEZ
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UN convention on the law of sea, 1982 sets out the basic provisions concerning the legal regime
of EEZ in its Article 55 to 75. Article 55 defines the specific legal regime of EEZ. It states that
the EEZ is an area beyond and adjacent to the territorial sea, subject to the specific legal regime
established in this part, under which the rights and jurisdiction of the coastal state and the rights
and freedoms of the other States are governed by the relevant provisions of this convention.
Article 57 of the convention provides that the EEZ shall not extend beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured. Given that the
maximum breadth of the territorial sea is 12 nautical miles, the maximum breadth of the EEZ is
188 nautical miles, that is say, approximately 370 kilometres. The outer limit lines of the EEZ
and the delimitation lines shall be shown on charts of a scale or scales adequately for
ascertaining their position. Where appropriate, lists of geographical coordinates of points may
also be substituted for such outer limit lines or delimitation lines pursuant to Article 75(1) of the
LOSC. The coastal State is also obliged to give due publicity to such charts or lists of
geographical coordinates and shall deposit a copy of each such chart or list with the UN
Secretary-General under Article 75(2).
Rights and duties of States in EEZ
The EEZ comprise the seabed and its subsoil, the suprajacent to the seabed as well as airspace
above the water. The area which falls in the category of seabed and subsoil is the continental
shelf which, in several cases, extends beyond the limits of the seabed within the EEZ. Thus, the
rights and duties of the coastal states extend to water column up to a distance of 200 nautical
miles from the baselines and the seabed and subsoil underlying the above-mentioned water
column. UN Convention of Law of Sea strike a balance between the rights, jurisdiction and
duties of the coastal state, on the one hand, and the rights and duties of the other States on the
other.
COASTAL STATES
Article 56 of the UN Convention on the Law of sea provides as follows:
1. In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the
natural resources, whether living or non-living, of the waters suprajacent to the seabed and of
the seabed and its subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water, currents and winds;
(b) jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
(c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive
economic zone, the coastal State shall have due regard to the rights and duties of other States
and shall act in a manner compatible with the provisions of this Convention.
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3. The rights set out in this article with respect to the seabed and subsoil shall be exercised in
accordance with Part VI.
Article 56(1) identifies two types of rights of the coastal State: firstly, sovereign rights for the
purpose of exploring and exploiting, conserving and managing the natural resources, whether
living or non-living, of the seabed and subsoil and the suprajacent waters, and with regard to
other activities for the economic exploitation and exploration of the zone, such as the
production of energy from the water, currents and winds. Secondly, other rights and duties
provided for this convention. These other rights and duties are detailed throughout the LOSC
and encompass a wide range of issues related to the use and management of the marine
environment. The key aspects that are covered by these other rights and duties are:
1. Navigation Rights: The LOSC guarantees the right of innocent passage through the
territorial sea of coastal states and transit passage through international straits. These
rights are not specific to the EEZ but are integral to the overall framework of maritime
law.
2. Environmental Protection: The LOSC establishes a legal framework for the protection
and preservation of the marine environment, including regulations related to pollution
from ships, dumping of waste, and conservation of living marine resources within the
EEZ.
3. Scientific Research: Coastal states have an obligation to promote and facilitate marine
scientific research in the EEZ, and they may regulate and control such research activities
to ensure the protection of the marine environment.
4. Fisheries Management: Coastal states have the duty to manage and conserve living
marine resources, particularly fish stocks, in their EEZs to prevent overfishing and
ensure sustainable utilization.
5. Regulation of Economic Activities: The LOSC provides for the regulation of economic
activities within the EEZ, including mining and exploitation of mineral resources, as well
as activities related to the production of energy from water, currents, and winds.
6. Protection of Submarine Cables and Pipelines: Coastal states are required to protect and
preserve submarine cables and pipelines within their EEZs.
7. Marine Scientific Research: The LOSC outlines the rights and responsibilities of coastal
states and other states regarding marine scientific research in the EEZ.
8. Maritime Zones Delimitation: The LOSC contains provisions for the delimitation of
maritime zones, including the boundaries of the territorial sea, contiguous zone, and
continental shelf. These delimitation processes may involve negotiations or legal
procedures to determine boundaries between adjacent coastal states.
9. Freedom of Overflight: While not specific to the EEZ, the LOSC ensures the freedom
of overflight for aircraft over the EEZ and the high seas.
Article 56(1)(b) also vest jurisdiction in the coastal States with regard to: (i) the establishment and
use of artificial islands, installations, and structures; (ii) marine scientific research; and (iii) the
protection and preservation of the marine environment. It is made explicit that in exercising its
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rights and performing its duties in the EEZ, the coastal State should have due regard to the
rights and duties of the other States and should act in a manner comparable with the provisions
of the Convention.
This article 56 is important for two reasons. Firstly, it indicates the nature of the coastal States’s
rights, and the activities in respect of which the coastal State has jurisdiction. What would be the
extend of such rights and jurisdiction, it is detailed in some other specific provisions. Secondly,
Article 56 underlines the fact that the coastal State’s rights are primarily economic rights in
nature, and categories only the economic rights as ‘sovereign rights. These sovereign rights are
not only confined to the living and non-living natural resources but also to the other activities for
the economic exploitation and exploration of the Zone, such as the production of energy from
the water current and winds.
CASE LAW: ABAN LOYD CHILES OFFSHORE LTD. VERSUS UOI
In Aban Loyd Chiles Offshore Ltd. versus UOI, the supreme court faced a question whether
custom duty under the relevant law could be levied in the EEZ.
The appellant is engaged in drilling operations for exploration of offshore oil, gas and other
related activities under contracts awarded by the Oil and Natural Gas Commission. The drilling
operations are carried on at oil rigs/vessels which are situated outside the territorial waters of
India. Until November 1993 the appellant and all other similarly situated companies which were
engaged in oil and gas exploration and exploitation were permitted to tranship stores to the oil
rigs without levy of any customs duty. From November 1993 onwards, the Revenue Authorities
refused to permit companies engaged in onward offshore operations to tranship stores to the oil
rigs without payment of customs duty.
The appellants challenged the levy of customs duty. The Bombay High Court held that the
appellant should not be permitted to clear the consignments without payment of duty. Hence
the appeal.
The contention advanced on behalf of the appellant is that the oil rigs which are located in the
Exclusive Economic Zone (EEZ) are beyond the territorial waters of India, fall outside the
territory of India and, therefore, any stores consumed on the oil rigs would be deemed to have
been consumed by a foreign-going vessel.
The court answered the question after considering the relevant provisions of the UNCLOS
1982, and concluded that such duty can be levied.
Under UNCLOS, the territorial sovereignty of the coastal State extends beyond the land
territory only up to the outer limits of the territorial sea. 'Territorial waters' extend up to 12
nautical miles from the low water mark line of the coast (base line) which is consistent with
UNCLOS.
The oil rig is deemed to be stationed at a designated area in the continental shelf/EEZ. The
designated area is within the territorial limits of the coastal State. The maritime limit of the
coastal State would include territorial waters, the continental shelf and the EEZ, as recognised
under UNCLOS, including the rights, exclusive jurisdiction and duties of the coastal State with
regard to customs, fiscal safety, health, immigration laws and regulations: see arts 56, 60, 77 and
80 of UNCLOS.
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Article 127 of UNCLOS deals with customs duties, taxes and other charges. Clause 1 provides
that traffic in transit shall not be subject to any customs duties, taxes or other charges except
charges levied for specific services rendered in connection with such traffic.
According to this article, where the goods are in transit to other country shall not be subject to
any customs duties, taxes or other charges except for the charges levied for specific services in
connection with such traffic. In other words, there is no prohibition for levying customs duties
on the goods which are not in transit for onward transmission to any other country. If the goods
are brought in only while proceeding to other country, then no customs duty can be levied. In all
other cases, it seems to be permissible.
In the present case, as the goods were being taken to a territory which would be deemed to be a
part of the territory of India though the goods have left the territorial waters, the same would be
eligible to levy of duty when they are taken and consumed within the deemed territory of India.
OTHER STATES
Article 58 contains rights and duties of other States in the EEZ. It provides as follows:
Article 58: Rights and duties of other States in the exclusive economic zone
1. In the exclusive economic zone, all States, whether coastal or land-locked, enjoy, subject to the
relevant provisions of this Convention, the freedoms referred to in article 87 of navigation and
overflight and of the laying of submarine cables and pipelines, and other internationally lawful
uses of the sea related to these freedoms, such as those associated with the operation of ships,
aircraft and submarine cables and pipelines, and compatible with the other provisions of this
Convention.
2. Articles 88 to 115 and other pertinent rules of international law apply to the exclusive
economic zone in so far as they are not incompatible with this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive
economic zone, States shall have due regard to the rights and duties of the coastal State and shall
comply with the laws and regulations adopted by the coastal State in accordance with the
provisions of this Convention and other rules of international law in so far as they are not
incompatible with this Part.
It follows that among the six freedoms enumerated in Article 87 of the LOSC, three freedoms
of the seas – freedoms of navigation, overflight and the lying of submarine cables and pipelines
– apply to the EEZ. In this regard, article 58(2) provides that, Articles 88 to 115 and other
pertinent rules of international law relating to the high seas apply to the EEZ in so far as they
are not incompatible with this Part V.
However, in the exercise of their rights in the EEZ, States should have due regard to the rights
and duties of the Coastal States and shall comply with the laws and regulation adopted by the
Coastal State in accordance with the provisions of this convention and other rules of
international law insofar as these are not incompatible with the Part V. It would seem to follow
that, unlike on the high seas, the three freedoms of the seas may be qualified by coastal State
jurisdiction in the EEZ. For instance, overflight in the EEZ for the purposes of exploration and
exploitation is subject to the permission of the coastal State.
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Navigation of foreign vessels through an EEZ is subject to regulation of the coastal State with
respect to marine pollution. Navigation of foreign vessels may also be affected by the presence
of artificial islands and installations of the coastal State. In addition to this, shipping in the inner
twenty-four miles of the EEZ will be subject to coastal State jurisdiction over its contiguous
zone. Whilst the freedom of laying submarine cables and pipelines applies to the EEZ (see,
Article 79), the delineation of the course of a pipeline in the seabed of the EEZ is subject to the
consent of the coastal State in accordance with Article 79(3). To this extent, the freedoms
enjoyed by foreign States in the EEZ are not exactly the same as those enjoyed on the high seas.
The jurisdiction of the Coastal State over EEZ also includes the conduct of marine scientific
research as stated in Article 56(1)(b)(ii). In this regard, article 246 grants the coastal State a right
to regulate, authorize and conduct marine research in their EEZ, providing that, such research
shall be carried in accordance with the convention and for peaceful purpose, and it shall be
conducted with appropriate scientific methods, and it shall not unjustifiably interfere with other
legitimate uses of the sea compatible with the convention and shall be duly respected in the
course of such use, and it shall be conducted in compliance with all relevant regulations adopted
in conformity with the convention including that related to environmental protection, in order to
increase scientific knowledge of the marine environment for be benefit of all mankind.
According to article 246(5), the coastal State may however in their discretion withhold their
consent to the conduct of the marine scientific research of another state, in cases, if the project
leading to marine scientific research (a) is of direct significance for the exploration and
exploitation of natural resources, whether living or non-living; (b) involves drilling into the
continental shelf, the use of explosives or the introduction of harmful substances into the
marine environment; (c) involves the construction, operation or use of artificial islands,
installations and structures referred to in articles 60 and 80; (d) contains information
communicated pursuant to article 248 regarding the nature and objectives of the project which is
inaccurate or if the researching State or competent international organization has outstanding
obligations to the coastal State from a prior research project.
RESIDUAL RIGHTS AND JURISDICTION
Whilst the LOSC provides rules involving most of the obvious uses of the EEZ, there are some
uses of the zone where it remains unclear whether they fall within the rights of the coastal State
or other States. Here residual rights in the EEZ are at issue.
In this regard, Article 59 provides as follows:
In cases where this Convention does not attribute rights or jurisdiction to the coastal State or to
other States within the exclusive economic zone, and a conflict arises between the interests of
the coastal State and any other State or States, the conflict should be resolved on the basis of
equity and in the light of all the relevant circumstances, taking into account the respective
importance of the interests involved to the parties as well as to the international community as a
whole.
Under Article 59, there is no presumption in favour of either the coastal State or other States. It
would seem to follow that the possible attribution of residual rights is to be decided on a case-
by-case basis. An international dispute could well arise with regard to a matter where the LOSC
does not specify which States are to have jurisdiction. Such a dispute is to be settled by peaceful
Page | 19
means of their own choice pursuant to Articles 279 and 280 of the LOSC. If this is
unsuccessful, the dispute is to be referred to the compulsory procedures of dispute settlement in
Part XV of the LOSC, unless the dispute relates to limitations and exceptions to the compulsory
procedures. An example may be provided by the 1999 M/V Saiga (No. 2) case between Saint
Vincent and the Grenadines and Guinea. A central question in this case was whether or not
Guinea was entitled to apply its customs law in its EEZ. In this regard, ITLOS held that whilst
the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial
islands, installations and structures in the EEZ pursuant to Article 60(2) of the LOSC, the
Convention does not empower a coastal State to apply its customs laws in respect of any other
parts of the EEZ not mentioned in that provision. In so ruling, ITLOS was wary about
extending customs laws of the coastal State to its EEZ.
ARTIFICIAL ISLAND, INSTALLATIONS AND STRUCTURES
Article 60 (1) of the UN convention on the Law of the Sea provides that in the EEZ, the
Coastal States shall have the exclusive right to construct and to authorise and regulate the
construction, operation and use of: (a) artificial islands; (b) installations and structures for the
purposes provided for in article 56 and other economic purposes; (c) installations and structures
which may interfere with the exercise of the rights of the coastal State in the zone. Article 60(2)
provides that the coastal State shall have exclusive jurisdiction over such artificial islands,
installations and structures, including jurisdiction with regard to customs, fiscal, health, safety
and immigration laws and regulations.
Furthermore, Article 60 (4) provides that, the Coastal State may, where necessary, establish
reasonable safety zones around such artificial islands, installations and structures in which it may
take appropriate measures to ensure the safety both of navigation and of the artificial islands,
installations and structures. Article 60(5) provides that the breadth of such safety zones shall be
determined by the coastal State but shall not exceed 500 meters around such islands, installations
or structures, measured from each point of their outer edge, unless otherwise authorised by
international standards or as recommended by the competent international organisation. Article
60(6) requires that all ships are required to respect these zones and comply with international
standards regarding navigation in the vicinity of artificial islands, installations, structures and
safety zones.
At the same time, the rights of the coastal State on this matter are subject to certain obligations.
Under Article 60(3), due notice must be given of the construction of such artificial islands,
installations and structures, and permanent means for giving warning of their presence must be
maintained. Any installations or structures which are abandoned or disused must be removed to
ensure safety of navigation. Under Article 60(7), the coastal State may not establish artificial
islands, installations and structures and the safety zones around them ‘where interference may be
caused to the use of recognised sea lanes essential to international navigation’. Article 60(8)
clarifies that artificial islands, installations and structures do not possess the status of islands.
They have no territorial sea of their own and their presence does not affect the delimitation of
the territorial sea, EEZ or continental shelf.
LIVING RESOURCES
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Article 56 outlines certain aspects, and further details regarding the rights and responsibilities of
the State concerning living resources within the Exclusive Economic Zone (EEZ) can be found
in Articles 61 to 70 and Article 73. Article 61 delves into the conservation of living resources in
the EEZ, stipulating that the coastal State is tasked with determining the permissible catch of
these resources. Additionally, the coastal State must implement conservation and management
measures to prevent the endangerment of these resources due to over-exploitation. These
measures aim to maintain or restore populations of harvested species at levels capable of
yielding the maximum sustainable output, taking into account various factors such as the
economic needs of coastal fishing communities, the specific requirements of developing States,
fishing patterns, the interdependence of stocks, and any internationally recommended minimum
standards, whether sub-regional, regional, or global.
Article 62 addresses the utilization of living resources in the EEZ. In its first paragraph, Article
62 requires the coastal State to actively promote the goal of optimum utilization of living
resources in the EEZ without compromising the principles outlined in Article 61. The concepts
of allowable catch in Article 61 and optimum utilization in Article 62(1) are strategically
formulated to encourage the comprehensive utilization of living resources. In the second
paragraph of Article 62, the coastal State is mandated to meticulously assess its capacity to
harvest living resources within the EEZ. If the coastal State possesses the capacity to harvest the
entire allowable catch, it is not obliged to grant other States access to the living resources of the
EEZ, except as provided in Article 69 and Article 70 (addressing the rights of landlocked and
geographically disadvantaged States, respectively). In cases where the coastal State lacks the
capacity to harvest the entire allowable catch, it must, in accordance with the terms and
conditions specified in its regulations as outlined in Article 62, paragraph 4, allow other States
access to the surplus of the allowable catch.
Article 62, paragraphs 2 and 4 delineate specific considerations for the coastal State when
granting access to other States. Paragraph 2 emphasizes that the coastal State must give particular
attention to the stipulations of Article 69 and 70, especially concerning developing States. This
provision prioritizes landlocked and geographically disadvantaged States, particularly in the
allocation of surplus allowable catch.
In the context of providing access to other States, paragraph 3 of Article 62 mandates that the
coastal State must consider various factors. These include the significance of the living resources
in the area to the coastal State's economy and national interests, adherence to Article 69 and 70,
meeting the requirements of developing States in the sub-region or region, and the necessity to
minimize economic disruption in States whose nationals have traditionally fished in the zone or
have invested significantly in research and stock identification. Therefore, with the exception of
landlocked and geographically disadvantaged States, the UN Convention on the Law of the Sea
grants the coastal State substantial discretion in determining access to surplus living resources
within the zone.
Lastly, Article 62, paragraph 4 mandates that nationals of other States engaging in fishing
activities in the Exclusive Economic Zone (EEZ) must adhere to conservation measures and
other terms and conditions set forth in the laws and regulations of the coastal State. These laws
and regulations must align with the principles of the Convention and may encompass various
aspects, including:
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(i) licensing of fishermen, fishing vessels and equipment, including payment of fees and
other forms of remuneration,
(ii) determining the species which may be caught, and fixing quotas of catch,
(iii) regulating seasons and areas of fishing, the types, sizes and amount of gear, and the
types, sizes and number of fishing vessels that may be used,
(iv) fixing the age and size of fish and other species that may be caught; (e) specifying
information required of fishing vessels,
(v) the placing of observers or trainees on board such vessels by the coastal State,
(vi) the landing of all or any part of the catch by such vessels in the ports of the coastal
State,
(vii) requirements for the training of personnel and the transfer of fisheries technology,
(viii) enforcement procedures.
RIGHTS OF LAND LOCKED AND GEOGRAPHICALLY DISADVANTAGED STATES
During the negotiations at UNCLOS III, a distinct group emerged comprising landlocked states
and geographically disadvantaged states, including those with limited coastlines and shelf-locked
states. Prior to UNCLOS III, landlocked states were primarily concerned with issues of access to
the high seas and transit through neighboring territories. However, at UNCLOS III, their
objectives expanded significantly.
The focus of landlocked states, especially those classified as developing countries, was to secure
preferential rights within neighboring economic zones and equitable treatment in the utilization
of resources in the International Seabed Area. The success of the Landlocked and
Geographically Disadvantaged States (LLGDS) Group is reflected in the numerous references to
these states in the text of the UN Convention on the Law of the Sea.
During UNCLOS III, the LLGDS Group sought the right to participate in both non-living and
living resources of neighboring economic zones. This right was argued based on the
conceptualization of the continental shelf as a natural extension not only of the coastal state but
of the entire landmass, including countries situated in the hinterland. However, these attempts
were unsuccessful.
Article 69 of the UN Convention on the Law of the Sea 1982 recognizes the right of landlocked
states to participate equitably in the exploitation of the living resources of Exclusive Economic
Zones (EEZs) of coastal states in the same region or sub-region. This right is subject to two
main qualifications: firstly, it exists only in respect of an appropriate part of the surplus, and
secondly, economic and geographical circumstances of all concerned states must be considered,
along with generally applicable criteria for conservation and utilization of living resources.
The terms and modalities of participation must be agreed upon through bilateral, sub-regional,
or regional arrangements. These agreements should take into account factors such as avoiding
detrimental effects on the fishing industries of coastal states, the extent to which a landlocked
state may claim access to the EEZs of other states, the burden on a coastal state due to
participation claims by other landlocked states, and the nutritional needs of the populations
involved.
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Similar provisions are extended to states with specific geographical characteristics, including
those bordering enclosed or semi-enclosed seas and coastal states with no EEZs of their own
(Article 70). However, Article 71 specifies that the rights outlined in Articles 69 and 70 do not
apply to a coastal state whose economy heavily relies on the exploitation of the living resources
of its exclusive economic zone.
Furthermore, Article 71(1) ensures that the rights under Articles 69 and 70 cannot be directly or
indirectly transferred to third states or their nationals, except through agreements between the
concerned states. The states involved are also prohibited from obtaining technical or financial
assistance that might facilitate the transfer of these rights, unless it doesn't have the effect of
such transfer, as stipulated in Paragraph 2 of Article 71.
ENFORCEMENT OF LAWS AND REGULATIONS OF THE COASTAL STATE
(ARTICLE 73)
Article 73 of UNCLOS establishes a framework for the coastal state to enforce its laws and
regulations within its exclusive economic zone while also emphasizing the importance of certain
procedural safeguards, including the prompt release of arrested vessels upon the posting of
security and the notification of the flag state in case of arrest or detention of foreign vessels. It
provides that:
1. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and
manage the living resources in the exclusive economic zone, take such measures, including
boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance
with the laws and regulations adopted by it in conformity with this Convention.
2. Arrested vessels and their crews shall be promptly released upon the posting of reasonable
bond or other security.
3. Coastal State penalties for violations of fisheries laws and regulations in the exclusive
economic zone may not include imprisonment, in the absence of agreements to the contrary by
the States concerned, or any other form of corporal punishment.
4. In cases of arrest or detention of foreign vessels the coastal State shall promptly notify the
flag State, through appropriate channels, of the action taken and of any penalties subsequently
imposed.
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CONTINENTAL SHELF
एक कोस्टल राज्य का कंटटनेंटल शेल्फ उसकी समुद्री सीमा का एक टिस्सा िोता िै जिसमें उसकी ज़मीनी सीमा
से बािर तक फैले िुए समुद्री क्षेत्रों का समद्
ृ धि-सीमा तक की समुद्री बेड और उप-भूमम शाममल िोती िै , या तो
कंटटनेंटल माजििन के बािरी ककनारे तक, या तो यटि कंटटनेंटल माजििन का बािरी ककनारा उस िरू ी तक निीं
फैलता िै , तो उसकी ज़मीनी सीमा की चौडाई की माप की िाने वाली रे खाओं से 200 समद्र
ु ी मील की िरू ी तक।
…………..Article 76
Geological Concept of Continental Shelf
The continental shelf refers to the relatively shallow, gradually sloping submerged expanse of a
continent, stretching from the shoreline to the deeper oceanic waters. Geologists distinguish two
key features within this submerged region: the "Continental Slope" and the "Continental Rise."
The continental slope is the steeper descent of the seabed toward abyssal depths, starting from
the outer edge of the shelf. Beyond this, the continental rise extends outward, featuring a less
steep decline into the abyssal depths.
Collectively, the "Shelf," "Slope," and "Rise" form the continental margin. It is noteworthy to
highlight that the extent of the continental shelf varies among countries. For instance, some
nations possess vast continental shelves, while others lack them entirely. Notably, the United
States, West Germany, Indonesia, Australia, and India boast expansive continental shelves.
Continental shelves are critically significant as they support diverse marine ecosystems, serve as
vital breeding and feeding grounds for commercial fish species, and are essential sources of
mineral resources such as oil and natural gas. Additionally, they play a crucial role in global
connectivity through the laying of submarine cables, contribute to climate regulation by
sequestering carbon, and attract tourism and recreational activities along coastal areas. Moreover,
these shelves influence sea level changes, impacting coastal regions, and hold geopolitical and
strategic importance.
Evolution of Legal Concept of Continental Shelf
Page | 24
The development of legal concept of continental shelf can be attributed to historic Truman
Proclamation of 1945. The proclamation laid down that the Government of the United States
regards the continental shelf beneath the high seas but contagious to the coasts as a part of the
United States and thus, subject to its jurisdiction and control. But in cases where the continental
shelf extends to the shores of another state or is shared with an adjoining state, the boundary
shall be determined by the United States and the state concerned according to equitable
principles. Further it clearly provided that the legal status of high seas and the right to their free
navigation are in no way affected by the treaty.
This proclamation acted as a catalyst, setting off a chain reaction of similar declarations from
other nations. By 1958, 27 states had passed legislation asserting their jurisdiction and control
over submarine areas adjacent to their coasts, met with no objections from neighbouring
countries. While the concept of the continental shelf gained widespread recognition, states
differed on the crucial issue of its limits.
Divergent standards emerged, with some nations adopting the isobath limitation, while others
laid claim to the entire shelf regardless of depth. Notably, Latin American states, despite having
limited geological continental shelf, boldly asserted full sovereignty over all seabed and adjacent
seas up to a depth of 200 nautical miles. Although state practices were inconsistent until the early
1950s, a consensus gradually formed among the majority of states to establish a new zone for
the exploitation of natural resources on the continental shelf.
Consequently, the 1958 Geneva Convention on the Continental Shelf marked a historic moment,
formally enshrining a legal regime governing this maritime expanse. Article 1 of the convention
defined the continental shelf to mean:
1. submarine areas adjacent to the coast but outside the area of the territorial sea, to a
depth of 200metres or, beyond that limit, to where the depth of the suprajacent waters
admits of the exploitation of the natural resources of the said areas;
2. seabed and subsoil of similar submarine areas adjacent to the coasts of islands.
However, this definition of continental shelf was far from adequate. This was because of the
want of connection of minimum legal limit (i.e., 200 meters) with geological and geographical
attribute of continental shelf. Moreover, the adaptable character of the adjacency concept
outlined in the definition, coupled with the potential for exploitation beyond the 200-meter
isobath and the configuration of submarine regions, allows for the argument that the continental
shelf extends to all areas, regardless of whether they fall within the 200-meter limit, as long as
they are both adjacent and exploitable. The exploitability criteria lacked specificity, rendering
them susceptible to subjective interpretations that could change over time. As maritime activities
expanded and deep-sea mining technologies evolved, it became evident that a more
comprehensive and adaptable framework was imperative to address the emerging challenges and
ensure the sustainable utilization of the extensive maritime spaces extending beyond coastal
zones.
Hence, it was hardly surprising that the precise limits of the continental shelf became a
significant issue at UNCLOS III. In the conference the delegates to UNCLOS III grappled with
the problem of defining the continental shelf.
Page | 25
However, by that time ICJ had given its verdict in the matter of North Sea Continental Shelf. In
this case the Court had observed that: “the rights of the coastal state in respect of the area of
continental shelf that constitutes natural prolongation of its land territory into and under the
sea, exist ispo facto and ab initio by virtue of its sovereignty over the land and as an extension of
it in exercise of sovereign rights for the purpose of exploring the sea-bed and exploiting its
natural resources.” 1 The definition of the shelf as a natural prolongation of the land mass given
by the ICJ was preferred to that of Article 1 of the 1958 Convention and the delegates in
UNCLOS III proceeded to build upon it. The main problem, however, lay in determining the
outer limits of the continental rise for parts of it consists of debris on the deep ocean floor and
not a natural prolongation of the land mass. Two main formulas were presented, the Irish and
the Soviet, to define the concept. The Irish formula proposed that the rise should be deemed to
end where the thickness of sedimentary rocks become less than 1 % of the shortest distance
between such rocks and the foot of the continental slope. The Soviet formula proposed a
distance criterion for determining the outer limit of the continental margin. The two formulas
were blended together in what was termed the "biscuit" formula which find expression in Article
76 as a result of negotiation at the Conference.
United Nation Convention on Law of Sea 1982 and Continental Shelf (Article 76)
Article 76(1) of the LOSC define continental shelf to include “the seabed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural prolongation of its
land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance.” Article 76(3) clarifies that
the continental margin comprises the submerged prolongation of the land mass of the coastal
State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not
include the deep ocean floor with its oceanic ridges or the subsoil thereof.
Criteria for determining the outer limits of the continental shelf beyond 200 nautical
miles
In areas where the outer edge of the continental margin extends beyond 200 nautical miles, the
determination of the continental shelf limit relies on geological criteria specified in Article 76(4).
This provision establishes two distinct criteria for establishing the seaward limit of the
continental shelf.
The first criterion, known as the Irish formula is detailed in Article 76(4)(a)(i) and centres around
the sedimentary thickness test. As proposed by Ireland, this criterion delineates the outer edge of
the continental
margin through a
line drawn
between
outermost fixed
points. At each of
these points, the
1. I.C.J. Reports (1969), p.3.
Page | 26
thickness of sedimentary rocks must be at least 1 percent of the shortest distance from the point
to the foot of the continental slope.
A second criterion which is based on the formula suggested by Hedberg is outlined in Article
76(4)(a)(ii) (see Figure
2). According to this
formula, the outer
edge of the
continental margin is
defined by a line
drawn between fixed
points not exceeding
60 nautical miles from
the foot of the
continental slope.
Unless evidence
suggests otherwise,
determining the foot
of the continental
slope adheres to the
point of maximum gradient change at its base, following the specifications of Article 76(4)(b).
In both scenarios, the lines marking the outer limits of the continental shelf must be straight and
not exceed 60 nautical miles in length, connecting fixed points determined by coordinates of
latitude and longitude (Article 76(7)). The fixed points forming the line of the outer limits of the
continental shelf on the seabed should not surpass 350 nautical miles from the baselines used to
measure the breadth of the territorial sea or 100 nautical miles from the 2,500-meter isobaths
Page | 27
(Article 76(5), see Figure 3).
On submarine ridges, other than "submarine elevations that are natural components of the
continental margin, such as its plateaux, rises, caps, banks and spurs", according to Article 76(6),
only the 350-mile limit applies.
The Commission on the Limits of the Continental Shelf
Because of the complexity of these provisions a special Commission on the Limits of the
Continental Shelf has been created by the Convention to which the Coastal State must submit
the proposed delineation, together with scientific and technical data. The Commission which will
be composed of experts in geology, geophysics and hydrography will make recommendations on
the proposed limits and the limits established by a state on the basis of these recommendations
shall be "final and binding" (Article 76(8)) without prejudice to questions of delimitation arising
between it and an adjacent or opposite state (Article 76(10) & Annex II). If the state disagrees
with the Commission's recommendations it can make a revised or new submission to the
Commission. Initial submissions must be made within ten years of the Convention entering into
force and revised or new submissions within a reasonable time after a decision on the first
submission (Article 8, Annex II).
Revenue Sharing in respect of exploitation beyond 200 nautical miles
The third United Nations Conference on the Law of the Sea saw a divergence of interests
among states, with one faction advocating for an expansive interpretation of the "common
heritage of mankind" to encompass a broader seabed and subsoil, while another sought to
extend exclusive coastal state jurisdiction. Initially, it seemed that the legal boundaries of the
continental shelf and the Exclusive Economic Zone (EEZ) might coincide at the 200-mile limit,
driven by the perceived benefits for most coastal states in developing the EEZ concept.
However, a limited number of states possessing shelves exceeding 200 miles prevailed in
retaining the continental shelf concept for areas beyond the EEZ boundary.
Although not absolute, achieving this success necessitated these states to agree upon a maximum
legal shelf of 350 miles and adopt the principle of revenue sharing within the 150-mile-wide area
between the 200-to-350-mile limits. Within this designated zone, parties to the Law of the Sea
(LOS) Convention are bound by obligations concerning the exploitation of the continental shelf.
Coastal states are required to make payments or provide contributions for the non-living
resources found on the continental shelf. Starting after the initial five years of production
beyond the 200-mile zone, these payments or contributions must be made on an annual basis. In
the sixth year, the coastal state is mandated to pay or contribute 1% of the value or volume of
production, with this percentage increasing by 1% each subsequent year until it reaches 7%. This
incremental rise, coupled with the initial five-year moratorium, is designed to enable the coastal
state to recoup initial production-related expenditures before commencing regular payments or
contributions.
To facilitate this process, the Seabed Authority, established to oversee the deep-sea bed area
(Articles 137(2), 153, 156, 157), acts as an intermediary for these payments or contributions. The
Authority is mandated to distribute them among the Convention parties based on an "equitable
sharing criteria," considering the interests and needs of developing countries. Notably, a
Page | 28
developing country that is a net importer of mineral resources from its continental shelf is
exempt from such payments or contributions for that particular resource (Article 82).
Sovereign Rights of Coastal States over their Continental Shelf
The sovereign rights exercised by coastal states over the continental shelf, as outlined in Article
77(1) of the United Nations Convention on the Law of the Sea (LOSC), encompass several
crucial features:
(i) Inherent and Immediate Nature:
The sovereign rights of the coastal State over the continental shelf are inherent rights. These
rights are intrinsic, not contingent on occupation or explicit proclamation. The continental shelf
is deemed to exist automatically and from its inception (ipso facto and ab initio).
(ii) Scope of Sovereign Rights:
Sovereign rights are specific to the exploration and exploitation of natural resources on the
continental shelf. Unlike territorial sovereignty, they exclude non-natural resources, such as
wrecks.
(iii) Natural Resources:
Natural resources primarily encompass mineral and other inanimate assets found in the seabed
and subsoil. Remarkably, sedentary species are also deemed natural resources within the
continental shelf. As per Article 77(4), sedentary species refer to organisms that, at the
harvestable stage, either remain immobile on or under the seabed or can only move while in
constant physical contact with the seabed or subsoil. This category includes organisms like
oysters, clams, and abalone. However, there exists a debate about whether crabs and lobsters
should be classified as sedentary species. When a coastal State establishes an Exclusive Economic
Zone (EEZ), it obtains sovereign rights to explore and exploit all marine living resources located
on the seabed within that zone.
(iv) Jurisdictional Implications:
While not explicitly detailed in a provision like Article 73(1), the recognition that sovereign rights
imply legislative and enforcement jurisdiction underscores the coastal state's authority to regulate
and enforce laws related to the exploration and exploitation of natural resources on the
continental shelf.
(v) Inclusive Personal Scope:
Sovereign rights extend to all individuals and vessels, regardless of nationality. This implies that
sovereign rights are not restricted based on nationality. All individuals and vessels, regardless of
their origin, fall under the jurisdiction of the coastal state concerning the exploration and
exploitation of natural resources on the continental shelf.
(vi) Exclusivity and Balancing:
The exclusivity of sovereign rights emphasizes that no other entity can engage in activities
related to the exploration and exploitation of natural resources on the continental shelf without
the express consent of the coastal state. However, this exclusivity is balanced by the need to
avoid unjustifiable interference with the navigation and rights of other states, as articulated in
Page | 29
Article 78(2) of the LOSC. This ensures that the exercise of sovereign rights respects the
interests and freedoms of other nations in accordance with international law.
In addition to its inherent sovereign rights, the coastal State exercises jurisdiction over various
activities, including artificial islands, marine scientific research, dumping, and other purposes.
The pertinent provisions can be succinctly summarized as follows.
Firstly, pursuant to Article 80 of the Law of the Sea Convention (LOSC), Article 60's
stipulations regarding the coastal State's jurisdiction over artificial islands are applied mutatis
mutandis to the continental shelf. Consequently, the coastal State holds exclusive rights to
construct, authorize, and regulate the operation and use of (a) artificial islands, (b) installations
and structures for purposes outlined in Article 56 and other economic pursuits, and (c)
installations and structures that may impact the coastal State's rights in the zone. This exclusive
jurisdiction extends to customs, fiscal matters, health, safety, and immigration laws and
regulations.
Secondly, concerning marine scientific research on the continental shelf, the coastal State's
jurisdiction is delineated by Articles 56(1)(b)(ii) and 246(1) of the LOSC. Consent from the
coastal State is mandatory for research in both the Exclusive Economic Zone (EEZ) and the
continental shelf, with limitations on withholding consent beyond 200 nautical miles. Article
246(6) specifies that consent cannot be denied for research beyond this limit unless it occurs in
designated areas for exploitation or detailed exploratory operations. However, within these
specified areas, coastal States may exercise discretion to withhold consent if the research
significantly impacts the exploration and exploitation of natural resources. Exceptions to the
restrictions on withholding consent apply only on specified grounds.
Thirdly, Article 210(5) of the LOSC explicitly grants the coastal State the right to permit,
regulate, and control dumping on the continental shelf, with simultaneous enforcement
jurisdiction over pollution resulting from dumping.
Finally, Article 81 declares that the coastal State possesses exclusive rights to authorize and
regulate drilling on the continental shelf for all purposes. The phrase "for all purposes" implies
that the coastal State's exclusive rights regarding drilling on the continental shelf are not
restricted solely to the exploration and exploitation of natural resources.
Freedoms of third States over Continental Shelf
In addition to delineating the rights of coastal states, the Convention also includes provisions
safeguarding the rights of other states. Firstly, Article 78 specifies that the rights of coastal states
over the continental shelf do not impact the legal status of the waters above it or the airspace
therein.
Secondly, the exercise of these coastal rights should not impede navigation rights and the
freedom of other states, ensuring that coastal activities do not unjustifiably interfere with these
essential rights. Consequently, coastal states are exclusively authorized to construct and operate
installations within their continental shelf, subject to compliance with these protective measures.
Moreover, the Convention acknowledges the entitlement of other states to lay submarine cables
and pipelines on the continental shelf. However, this right is contingent upon obtaining the
consent of the coastal states. In granting consent, coastal states have the prerogative to impose
Page | 30
conditions for the installation of cables or pipelines, thereby balancing the interests of all
involved parties.
Delimitation of the continental shelf between States with opposite or adjacent coasts
Article 83 of the U.N. Convention on the Law of the Sea, 1982, provides that delimitation of
Continental Shelf between states with opposite or adjoining coasts shall be made by agreement
on the basis of international law, as referred to in Article 38 of the Statute of the International
Court of Justice, in order to achieve an equitable solution.
In case no agreement can be reached within a reasonable period of time, the states concerned
shall resort to the procedure provided under Part XV dealing with the Settlement of Disputes.
And during the pendency of the settlement, the states concerned in spirit of understanding and
co-operation, shall make every effort to enter into provisional arrangements of a practical nature,
and, during this transactional period, not to jeopardise prejudice to the final delimitation.
Where there is an agreement in force between the states concerned, questions relating to the
delimitation of Continental Shelf shall be determined in accordance with the provision of that
agreement. Thus the 1989 Convention does not at all mention the principle of equidistance. It
emphasizes agreement between the parties. However, parties "in order to achieve an equitable
solution" may take into account the principle of equidistance.
CASE LAW: NORTH SEA CONTINENTAL SHELF CASE
This case involves a dispute between Germany, Denmark, and the Netherlands over the
delimitation of their continental shelf in the North Sea. The key issues revolve around the use
of the equidistance method, as outlined in a multilateral treaty, and whether Germany can claim
"special circumstances" under the Article 6(2) of Geneva Convention, 1958, to deviate from this
method. Article 6(2) of the Geneva Convention, 1958 provides that “where the same
Continental Shelf is adjacent to the territories of two adjacent states, the boundary of the
Continental Shelf shall be determined by agreement between them. In the absence of
agreement, and unless another boundary line is justified by special circumstances, the boundary
shall be determined by application of the principle of equidistance from the nearest points of
the baselines from which the breadth of the territorial sea of each state is measured.”
Fact of this case is as follows:
Germany's North Sea Coast is described as concave, while the coasts of Denmark and the
Netherlands are convex. This geographical distinction forms the basis for the argument
regarding the application of the equidistance method.
All three states are parties to a multilateral treaty that addresses the delimitation of their
continental shelf. The treaty allows for delimitation using the equidistance method, but it also
permits signatory states to reserve their position on this method.
Germany, although a signatory to the treaty, has not ratified it. Additionally, Germany has
reserved its position with regard to the equidistance method. This reservation suggests that
Germany may not want to be bound by the equidistance method, possibly due to concerns about
how it might impact its own continental shelf.
Page | 31
Denmark and the Netherlands argue that the equidistance method has evolved into a customary
international law and is, therefore, binding on Germany even without the treaty. They contend
that the configuration of Germany's coast does not constitute "special circumstances" as defined
in Article 6(2) of the Geneva Convention, 1958.
Germany asserts that the unique configuration of its North Sea coast amounts to "special
circumstances" under Article 6(2) of the Geneva Convention. This argument is crucial as it
implies that Germany should be allowed to deviate from the equidistance method.
Germany disputes the obligatory character of the equidistance method as a customary
international law, citing a lack of opinio juris on its part. Opinio juris refers to the belief that a
particular practice is a legal obligation. Germany's rejection of this opinio juris implies that it
does not consider the equidistance method binding as a customary rule.
Germany proposes an alternative rule for delimitation, arguing for a method where each state
receives a just and equitable share of the continental shelf based on the length of its coastline or
sea frontage. This suggests a departure from the equidistance principle.
Judgment of ICJ
The court, by a majority of eleven votes to six, held that the use of the equidistance method of
delimitation was not obligatory between the parties involved in the case. In the absence of a
specific obligatory method, the court outlined principles that should govern the delimitation
process between the parties:
(1) Delimitation shall be determined through mutual agreement, guided by equitable principles
and a comprehensive consideration of relevant circumstances. The objective is to ensure that
each party retains those segments of the Continental Shelf which naturally extend from its land
territory into and beneath the sea, without encroaching upon the corresponding extension of the
other party's land territory.
(2) If, during the application of the aforementioned provision, the delimitation results in
overlapping areas, the parties shall either agree on a proportional division or, in the absence of
an agreement, opt for an equal distribution. Alternatively, they may establish a collaborative
arrangement for joint jurisdiction, usage, or exploitation of the overlapping zones or any
designated portions thereof.
(3) During the negotiation process, factors to be taken into consideration include: (a) The overall
configuration of the parties' coastlines, along with the presence of any distinctive or unusual
features; (b) The known or easily ascertainable physical and geological characteristics, as well as
natural resources, within the relevant Continental Shelf areas; (c) The principle of reasonable
proportionality, which should be a guiding factor in achieving a delimitation that aligns with
equitable principles.
***
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Part III - Contiguous Zone, EEZ, and Continental Shelf

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Part III - Contiguous Zone, EEZ, and Continental Shelf

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LAW OF SEA

SOVEREIGNTY OF COASTAL STATES IN BALANCE

Dr. Sagar Kumar Jaiswal

SOVEREIGNTY OF COASTAL STATES IN BALANCE WITH

Authored by: Dr. Sagar Kumar Jaiswal,

QUESTIONS FOR EXERCISE

Evolution of Legal Concept of Continental Shelf

1. I.C.J. Reports (1969), p.3.

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